ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 11, 2010, the undersigned ordered respondent to file and serve a response to the petition. On August 10, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is second or successive under 28 U.S.C. § 2244(b). Petitioner has filed an opposition to the motion, and respondent has filed a reply.
On March 12, 1996, petitioner pled guilty to second-degree murder with the use of a firearm in the Shasta County Superior Court. The court sentenced petitioner to a state prison term of fifteen years to life plus a ten-year enhancement for the use of a firearm. On December 17, 1996, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. Petitioner did not seek review in the California Supreme Court. (Pet. at 2, Resp't's Lodged Docs. 1 & 2.)
Petitioner subsequently filed six petitions seeking habeas corpus relief in state court. Applying the mailbox rule*fn1, on June 15, 2006, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court which was denied on July 24, 2006. On August 29, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which was denied on September 28, 2006. On October 18, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on May 9, 2007. On or about November 24, 2008, petitioner filed a second petition for writ of habeas corpus in the Shasta County Superior Court which was denied on December 30, 2008. On January 28, 2009, petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal which was denied on March 12, 2009. Finally, on April 22, 2009, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court which was denied on June 17, 2009. (Resp't's Lodged Docs. 5-16.)
Petitioner previously filed a federal petition for writ of habeas corpus in this court challenging his 1996 conviction and sentence. See No. CIV S-07-1035 GEB DAD P.*fn2 On January 4, 2008, the court dismissed that petition as untimely. On May 26, 2010, petitioner commenced this action by filing the pending petition.
RESPONDENT'S MOTION TO DISMISS
Respondent argues that the court should dismiss the pending petition because it is successive under 28 U.S.C. § 2244(b). Specifically, respondent argues that prior to filing the pending petition, petitioner filed a petition challenging the same state court conviction and sentence in this court. See No. CIV S-07-1035 GEB DAD P. Respondent notes that this court dismissed the previously-filed habeas action as untimely. Respondent contends that the pending petition challenging the same conviction and sentence must be dismissed because petitioner has not obtained an order from the Ninth Circuit authorizing him to file a second or successive petition as required. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner argues that the habeas petition now pending before this court is not successive because it contains a new claim that he was deprived of his right to DNA testing that was not included in his previously-filed federal petition. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-4.) Petitioner contends that his DNA claim arises from a change in the law in 2006, which purportedly grants him an absolute right to DNA testing. (Id.)
In reply, respondent reiterates that the court lacks jurisdiction to consider petitioner's successive petition because he has not obtained the required prior authorization from the Ninth Circuit. (Resp't's Reply at 1-2.)
"A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed . . . ." 28 ...